Additional CrimPro Topics

Question 1

Wiretapping:

• Five major requirements for a valid wiretap warrant
• notice requirement

(HINT- Please Screen Telephone Calls Carefully)

Answer 1

• Provide for early termination once the info sought is obtained
• Suspected persons- warrant must name the suspected persons whose conversations are to be overheard
• Time- wiretap must be for a strictly limited time period [NY 30 DAY MAX!]
• Crime- there must be probable cause that a specific crime has been committed
• conversations- warrant must describe w/ particularity the conversations that can be overheard

NOTICE REQUIREMENT- w/in 90 days after the termination of the warrant, the person whose conversations were seized must be informed of the wiretap (but that period can be extended)

Question 2

Eavesdropping– “Unreliable Ear” doctrine

Answer 2

if you speak to someone who has agreed to a wiretap or some other form of electronic monitoring, you have no 4A claim; you assume the risk that the other party won’t keep your convo private.

Question 3

Law of Arrest:

When does an arrest occur?
When is the standard of proof?

Answer 3

• whenever the police take someone into custody against her will for prosecution or interrogation
• de facto arrest when police compel someone to come to the station for questioning or finger printing
• standard of proof = probable cause

Question 4

Law of Arrest:

When do you need/not need an arrest warrant?

Answer 4

PUBLIC PLACE

• cops don’t need warrant
• felonies = warrantless arrest when probable cause to believe the arrestee committed a felony
• misdemeanors = warrantless arrest for misdemeanor committed in officer presence

HOMES

• absent emergency, need a warrant to arrest someone in their home
• absent emergency, need an arrest warrant and search warrant to arrest someone in the home of a third party. [but note- if only have an arrest warrant, the arrested party won’t have standing to complain a/b the illegal search unless it was also his home or he was at least an overnight guest]

Question 5

Two Substantive Challenges to Pretrial Identifications

Answer 5

(1) Denial of Right to Counsel

(2) Violation of Due Process

Question 6

Right to Counsel @ Pretrial Identifications?

Answer 6

• 5th Amendment Miranda Doctrine? – NO
• 6th Amendment – YES at lineups and show ups AFTER formal charging; NO at photo arrays**
• NY Indelible Right – YES at lineups BEFORE formal charges if police are aware that you have counsel AND you request that counsel be present

Question 7

Due Process Violation as a Challenge to Pretrial Identification

Answer 7

• violates DP if so unnecessarily suggestive that it creates a very substantial likelihood of irreparable misidentification
• courts weigh the reliability of a suggestive ID against its corrupting effect

Question 8

What is the remedy for constitutional violations in pretrial identifications?

Answer 8

General ROL- exclusion of the witness’s IN COURT identification

EXCEPTION- in-court ID will still be allowed if the prosecution can prove that it is based on observations of the suspect OTHER THAN the unconstitutional show-up, line-up, or photo array.

Exception factors include: witnesses opp to view the D at the crime scene; certainty of the witness’s ID; specificity of the description given to the police.

Question 9

GRAND JURIES

• what do they do?
• are their proceedings public?
• are they mandatory in the US?
• inadmissible evidence?

Answer 9

• they issue indictments
• secret, not public
• mandatory for federal, not mandatory for states
• exclusionary rule doesn’t apply to grand jury proceedings; illegally seized evidence can be used

Question 10

Requirements of NY Grand Jury Indictments

Answer 10

GJ Indictions MUST:

• establish all elements of the offense; AND
• provide reasonable cause to believe that the accused committed the offense; AND
• be legally sufficient to establish that the accused committed the offense

Question 11

PRETRIAL DETENTION

• standard of proof?
• detention hearings?
• first appearance?

Answer 11

• Standard of proof = probable cause both to bind a D over for trial and to detail him in jail before trial
• A hearing to determine probable cause (Gerstein) is UNNECESSARY to justify pretrial detention if: (i) grand jury has issued an indictment; OR (ii) a magistrate has issued an arrest warrant
• Soon after arrest, D must be brought before a magistrate who (i) advises him of his rights; (ii) sets bail; and (iii) appoints counsel, if necessary

NOTE: decisions regarding bail are immediately appealable

Question 12

Trial Rights:

What is the Brady rule?

Answer 12

A prosecutor must disclose to a criminal D ALL material exculpatory evidence.

Question 13

Trial Rights:

What does the right to an unbiased judge mean?

Answer 13

1- the judge has no financial stake in the outcome of the case; and
2- the judge has no actual malice towards the D

Question 14

Right to a Jury Trial

Answer 14

• criminal Ds have the right to a jury trial when the maximum authorized sentence exceeds 6 months
• The fewest number of jurors allowed constitutionally is 6
• NY requires 12-person juries, but a D can waive this requirement and proceed to verdict w/ only 11 jurors participating in the deliberations

Question 15

Do jury verdicts have to be unanimous?

Answer 15

CONSTITUTIONALLY
jury verdicts in criminal trials must be unanimous only if 6 jurors are used; verdicts in 12 person juries need not be unanimous

NEW YORK (majority ROL)
jury verdicts must be unanimous

Question 16

Jury Pool Requirements

Answer 16

Cross-sectional requirement– requires that the POOL from which the jury is drawn represents a cross-section of the community

Question 17

6th Amendment Confrontation Clause

Answer 17

• D has a right to confront adverse witnesses

- exception: where face-to-face confrontation would contravene important public policy concerns

Question 18

Test for ineffective assistance of counsel . . .

Answer 18

Two Prongs-

(1) Counsel’s performance fell below an objective standard of reasonableness, meaning he made errors so serious that he was not functioning as counsel; AND
(2) Prejudice– but for the deficiency, the outcome of the trial would have been different

TIP- b/c of the strictness of the two-prong test, unless there is some colorable argument that the D is not guilty, always deny relief under an ineffective assistance of counsel claim

Question 19

What must the judge do for a guilty plea to be valid . . .

Answer 19

• establish that it is voluntary and intelligent
• before accepting the plea, the judge must conduct a colloquy in OPEN COURT in which she addresses ON THE RECORD: (i) the nature of the charges, including required elements of the charged offense; and (ii) the effect of the plea, e.g. waiver of the right to plead not guilty and waiver of the right to a trial

Question 20

Under what circumstances may a defendant withdraw a guilty plea?

(HINT- 4)

Answer 20

1- the plea is involuntary due to a defect in the plea-taking colloquy;
2- there is a jurisdictional defect;
3- the D prevails on a claim of ineffective assistance of counsel; OR
*4- the prosecutor fails to fulfill his or her part of the bargain

Question 21

8th Amendment Prohibition Against Cruel & Unusual Punishment

Answer 21

disallows criminal penalties that are grossly disproportionate to the seriousness of the offense

Question 22

8th Amendment & the Death Penalty

• statutory limits
• evidentiary requirements
• category exclusions

Answer 22

• death penalty statute cannot create automatic imposition of the death penalty
• jurors must be allowed to consider all potentially mitigating evidence
• mental retardation, presently insane, minors CAN NOT receive the death penalty

Question 23

When does double jeopardy attach?

Answer 23

Jury trial –> when the jury is sworn

Bench trial –> when the first witness is sworn

Guilty plea –> when the court accepts the defendant’s plea unconditionally

Question 24

Double Jeopardy “Same Offense” Requirement

• federal rule?
• NY approach?

Answer 24

Federal Rule– Two offenses are not the “same offense” for purposes of the double jeopardy clause if each contains an element the other does not

NY Approach– uses the “TRANSACTION TEST” which requires that a D be charged with all offenses arising from any single transaction UNLESS: (i) the offenses have substantially different elements; (ii) each offense contains an element not in the other AND prevents different harms; (iii) one is for criminal possession and the other use; OR (iv) each offense involves harm to a different victim.

Question 25

Lessor/Greater Offense Rule

Answer 25

• Prosecution for the greater offense precludes later prosecution for the lesser-included offense
• Prosecution for the lesser-included offense precludes later prosecution for the greater offense

Question 26

Double Jeopardy bars retrial for the same offense by the SAME SOVEREIGN only. Who are the same sovereigns for purposes of the double jeopardy clause?

• state and federal?
• different states?
• states and municipalities w/in them?

Answer 26

state and federal – NOT same sovereign

different states – NOT same sovereign

states & municipalities – SAME sovereign

Question 27

Four Exceptions to Double Jeopardy Rule Against Retrial

Answer 27

1- hung jury
2- mistrial for manifest necessity
3- successful appeal UNLESS based on insufficient evidence
4- breach of the plea agreement by the defendant

Question 28

Who can take the fifth? When can they take it?

Answer 28

Anyone and at any proceeding where they testify under oath

NY DISTINCTION– cannot assert in a grand jury proceeding

Question 29

Three Ways to Eliminate the Privilege to “take the Fifth”

Answer 29

1- grant immunity
2- D waives w/ respect to proper cross examination by taking the stand
3- SoL- unavailable if it has run on the underlying crime

Question 30

MBE Immunity v. NY Immunity

Answer 30

MBE- prosecutors can grant “use and derivative use” immunity, which bars the gov’t from using your testimony or anything derived to convict you.

NY- uses “transactional immunity” which is broader than “use and derivative use” immunity since it shields witnesses from prosecution for an transaction they testified a/b in their immunized testimony.

Question 31

Defendant’s Right to a Speedy Trial

Answer 31

If the People are not ready for trial, the D may be entitled to either release from custody or dismissal of the charge, depending upon the amount of the delay. The time starts to run from the filing of the accusatory instrument, and the statute sets exceptions for reasonable delay.

• felonies- 6 months
• misdemeanors- 90 or 60 days
• violations- 30 days

EXCEPTION TO DISMISSAL- if homicide is the charge, dismissal will not be granted

Question 32

Notice of Alibi & Intent to Present Insanity Defense

Answer 32

• The D must notify the prosecutor w/in 30 days from a “not guilty plea” if raising insanity as a defense
• W/in 20 days after arraignment, the prosecutor may serve the D w/ demand for the alibi defense, and the D must reply w/in 8 days

Question 33

Roadblocks

Answer 33

Generally, police can’t stop a car unless they have a reasonable suspicion, specific to that person, that a law has been violated. However, SCOTUS allows police roadblocks to stop cars w/o individualized suspicion. To be valid, the roadblock must stop cars on the basis of some neutral, articulable standard and be designed to serve purposes closely related to a particular problem related to automobiles. A roadblock to search cars for general illegal drugs and trafficking is not valid b/c the purpose is to look for evidence of ordinary criminal wrongdoing

Question 34

Juror Misconduct & New Trials

Answer 34

absent a showing of prejudice to a substantial right, proof of juror misconduct doesn’t entitle D to a new trial

Question 35

Tattoos & the 5th Amendment

Answer 35

the 5th priv against self-incrimination against compelled communication, not physical evidence from one’s body or evidence of a communication that was already made. To the extent that tats are considered a communication, they are analogized to preexisting documents, which are admissible even if they may betray incriminating assertions of facts or beliefs.

Question 36

Cavity Searches

Answer 36

4th A forbids searches that involve intrusion beyond the body’s surface on the mere chance that desired evidence might be obtained. Even where there is a clear indication that incriminating evidence will be retrieved if bodily intrusion is permitted, a search warrant is required absent an emergency

Question 37

Who bears the burden of proof in establishing Ds competency to stand trial? And what is that burden?

Answer 37

• prosecution

- preponderance of the evidence